Mitigating FCRA Risk Through Insurance
November 30, 2020 —
Sergio F. Oehninger, Geoffrey B. Fehling & Matt Revis - Hunton Insurance Recovery BlogAs reported in a recent Hunton Andrews Kurth client alert, Mitigating FCRA Risks in the COVID-19 World (Oct. 23, 2020), consumer litigation claims related to the Fair Credit Reporting Act (FCRA) doubled in the years leading up to the COVID-19 pandemic. After a slight decrease in FCRA filings due to court closures and other COVID-19 restrictions, claims will likely resume their previous upward trajectory. In fact, the Consumer Financial Protection Bureau (CFPB) has already seen an uptick in consumer complaints, many of which mention COVID-19 specific keywords.
Given the anticipated rise in FCRA complaints, the alert highlights the need for financial institutions and financial services companies to develop FCRA-compliant policies and procedures, including training on those policies and procedures, to mitigate the risk of FCRA-related enforcement actions and litigation claims, particularly in light of the regulatory changes relating to the COVID-19 pandemic.
Another important risk mitigation tool to consider is insurance, which can offer protection when even the most robust preventative measures fail to prevent an FCRA claim. Coverage for FCRA-related claims—often from directors’ and officers’ (D&O) or errors and omissions (E&O) policies—might be broader than one would initially expect. Policies may cover defense costs involving legal fees, as well as indemnification for damages.
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth,
Geoffrey B. Fehling, Hunton Andrews Kurth and
Matt Revis, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
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A Court-Side Seat: Appeals and Agency Developments at the Close of 2020
December 29, 2020 —
Anthony B. Cavender - Gravel2GavelTHE FEDERAL APPELLATE COURTS
The U.S. Court of Appeals
On November 23, 2020, the court, in a 2-to-1 vote, rejected the plaintiff’s request for an emergency injunction pending appeal in the case of Manzanita Band of Kumeyaay Nation, et al. v. Wolf. The majority held the requirement for such relief did not meet the requirements set forth in Winter v. NRDC, 555 US 7 (2008). Here, the plaintiffs allege that that the government’s construction of a border wall violates several environmental laws that were illegally waived by the Secretary of the Interior. Judge Millett dissented in part because the plaintiffs demonstrated a likelihood of success on the merits. She pointed to the argument that the authority of the Secretary—or Acting Secretary—to take these actions has been successfully challenged in several federal district courts. An expedited pleading schedule was established by the court.
The U.S. Court of Appeals for the Fourth Circuit
On November 17, 2020, in Ergon-West ,Inc. v. EPA, the court again reversed the EPA’s decision denying regulatory relief to a small refinery seeking a waiver of the renewable fuels mandate of the Clean Air Act. Ergon is a small refinery and requested relief in the basis of the economic harm that compliance would entail. In 2018, the court ruled in Ergon’s favor and remanded the case back to the agency. After relief was again denied, the court held that “Ergon has come forward with sufficient evidence undermining one aspect” of the agency’s latest decision, and the ruling was returned to EPA for additional analysis. It appears that a complicated process has become even more complicated.
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Anthony B. Cavender, PillsburyMr. Eyerly may be contacted at
te@hawaiilawyer.com
Transportation Officials Make the Best of a Bumpy 2020
January 18, 2021 —
Jim Parsons & Aileen Cho - Engineering News-RecordThe year 2020 provided a bumpy budgetary ride for all modes of transportation, and some industry insiders don’t expect airport and transit ridership to return to pre-pandemic levels for years. Agencies are taking lessons learned, coupled with hopes for the new Biden administration, to carry on as best they can.
Reprinted courtesy of
Jim Parsons, Engineering News-Record and
Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Sixth Circuit Affirms Liability Insurer's Broad Duty to Defend and Binds Insurer to Judgment Against Landlord
September 07, 2020 —
Michael V. Pepe & Janie Reilly Eddy - Saxe Doernberger & VitaIn a victory for policyholders, the Sixth Circuit affirmed that a landlord’s insurer owed a duty to defend the landlord in a bodily injury claim arising out of a fire that killed three and injured one. The Court held that the insurer breached its duty to defend and was bound to the insured’s $3 million consented judgment.
Transition Investments LLC, an owner of three properties in the Detroit area, purchased a general liability insurance policy with Hamilton Specialty Insurance Company to insure its properties. At one of the properties, a faulty stove started a fire, destroying the building, injuring one person and killing three others. The estates of the deceased and the injured party sued Transition in Michigan state court. In their complaint, the plaintiffs contended that Transition failed to provide a habitable premise and neglected to maintain the property’s stove, which allegedly caused the fire. The plaintiffs argued that Transition’s negligent maintenance of the property led to the fire and the resulting injuries. Transition subsequently tendered the claim to Hamilton. Hamilton claimed that the insurance policy did not cover the fire’s damages and refused to participate in the state court litigation. Ultimately, Transitions entered into a consent judgment with the plaintiffs for $3 million.
Reprinted courtesy of
Michael V. Pepe, Saxe Doernberger & Vita and
Janie Reilly Eddy, Saxe Doernberger & Vita
Mr. Pepe may be contacted at mvp@sdvlaw.com
Ms. Eddy may be contacted at jre@sdvlaw.com
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Drone Operation in a Construction Zone
August 17, 2020 —
Mark R. Berry & Freddy X. Muñoz - Peckar & AbramsonThe potential uses of unmanned aircraft systems (UAS) in the construction industry continue to expand as new technologies enter the market and construction companies realize UAS can perform unique tasks at tremendous cost savings. The full technological capabilities of UAS are, however, limited by law for public safety reasons. UAS share airspace with traditional passenger, military and cargo aircraft, and are potential hazards for humans below. The risk of potential catastrophic collisions has led to a careful approach to the adoption of this technology.
All U.S. airspace is exclusively regulated by the Federal Aviation Administration (FAA), and therefore, most drone regulation originates from this agency. Many states and localities have also enacted additional limits on UAS operations, and many of these nonfederal regulations are presently on unsure footing after a federal court ruling in Singer v. Newton invalidated a local regulation that conflicted with FAA regulations.
What is clear is that all commercial UAS operations must comply with FAA regulations. Any drone operation conducted by any private company, even through use of an employee’s personal drone, would constitute commercial operation subject to regulation.
Reprinted courtesy of
Mark R. Berry, Peckar & Abramson and
Freddy X. Muñoz, Peckar & Abramson
Mr. Berry may be contacted at mberry@pecklaw.com
Mr. Muñoz may be contacted at fmunoz@pecklaw.com
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Courts Are Ordering Remote Depositions as the COVID-19 Pandemic Continues
August 10, 2020 —
Victor J. Zarrilli, Robert G. Devine & Douglas M. Weck - White and WilliamsThe COVID-19 pandemic has generally put a stop to in-person depositions nationwide. Many litigants and their attorneys have also resisted attempts to proceed with remote video depositions, some holding out for the pandemic to subside and for the return of in-person business as usual while others are resistant to using new or unfamiliar virtual video technology. However, with COVID-19 cases still increasing nationwide, courts are beginning to mandate that depositions proceed remotely regardless of these apprehensions. It looks like remote video depositions may become part of a new set of best practices and perhaps mandatory in some circumstances for the foreseeable future.
The Supreme Court of New Jersey, for example, has ordered that “[t]o the extent practicable . . . depositions should continue to be conducted remotely using necessary and available video technology.” The court has not explicitly mandated remote depositions, but has certainly encouraged trial courts to do so, indicating in orders litigants are “strongly encouraged” to depose witnesses remotely. Other jurisdictions, such as Philadelphia’s First Judicial District, have given trial court’s similar authority and flexibility.
Recently, a trial court in Middlesex County, New Jersey granted a motion to compel a defense deposition of the plaintiff to proceed remotely, if not in person, over the objection of plaintiff’s counsel in a slip-and-fall case. This is one of the first such rulings in this area. The plaintiff’s counsel objected to the remote deposition on the grounds that his client was elderly with a heavy accent, had no technology knowledge, and had no internet access. That would seem to be a pretty good argument that a remote deposition would be impracticable. However, the defendant bolstered their case with an offer to cover the cost of renting and delivering a remote deposition technology package to the plaintiff, complete with a tablet, phone, speaker, internet hotspot and remote training beforehand. Although the trial court acknowledged the plaintiff’s “significant hardship,” the court ordered that the deposition proceed remotely if not in person.
Reprinted courtesy of White and Williams attorneys
Robert Devine,
Douglas Weck and
Victor Zarrilli
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com
Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com
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Michigan Finds Coverage for Subcontractor's Faulty Work
August 24, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe Michigan Supreme Court held that under a CGL policy, an "accident" may include unintentional subcontractor work that damages the insured's work product. Skanska USA Building Inc. v. M.A.P. Mechanical Contractors, Inc., et al., 2020 Mich. LEXIS 1194 (Mich. June 29, 2020).
Skanska USA Building Inc. was the construction manager on a renovation project for a medical centre. The heatng and cooling portion of the project was subcontracted to M.A.P. Mechanical Contractors, Inc. (MAP). MAP installed a steam builder and piping for the heating system. The installation included several expansion joints. After completion, Skanska learned that MAP had installed some of the expansion joints backward. This caused significant damage to concrete, steel and the heating system. The medical center sent a demand letter to Skanska, who send a demand letter to MAP. Skanska did the repairs and replacement of the damaged property. Skanska then submitted a claim of $1.4 million for its work to Amerisure Insurance Company. The claim was denied.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
If You Don’t Like the PPP Now, Wait a Few Minutes…Major Changes to PPP Loan Program as Congress Passes Payroll Protection Program Flexibility Act
July 27, 2020 —
Ryan J. Udell & Adam J. Chelminiak - White and Williams LLPOn June 5, 2020, President Trump signed into law the Payroll Protection Program Flexibility Act of 2020 (the Flexibility Act). The Flexibility Act provides much-needed flexibility for the Paycheck Protection Program (PPP) and its millions of business participants.
The PPP offers loans to small businesses that have been adversely impacted by the COVID-19 pandemic and the measures taken by various governmental authorities to stem the spread of the virus so that they could keep their employees on the payroll during an eight-week period after receiving the funds. The PPP was particularly alluring to borrowers because the loans could be forgiven. But as the duration of lockdown orders and the accompanying economic aftershocks have extended longer than initially anticipated, particularly in those sectors that depend on in-person business such as restaurants, hospitality and other “main street” retail establishments, many recipients of PPP loans have found it challenging to use the PPP funds for payroll and other authorized purposes within the eight-week period after they had received the PPP funds, as is necessary to preserve eligibility for forgiveness. The Flexibility Act makes several key changes to the PPP program in order to allow borrowers who need a longer re-opening runway to do so without jeopardizing their ability to qualify for loan forgiveness.
This alert outlines the key changes to the PPP made by the Flexibility Act.
Reprinted courtesy of
Ryan J. Udell, White and Williams LLP and
Adam J. Chelminiak, White and Williams LLP
Mr. Udell may be contacted at udellr@whiteandwilliams.com
Mr. Chelminiak may be contacted at chelminiaka@whiteandwilliams.com;
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